ridhiwani seifu milanzi administrator of the estate of the late maimuna mussa mangoda vs chivinja a mbweso bakari yasini 2023 tzhc 20083 18 july 2023

THE UNITED REPUBLIC OF TANZANIA IN THE HIGH COURT OF TANZANIA AT MTWARA LAND APPEAL NO. 1 OF 2023 (Arising from the District Land and Housing Tribunal for Mtwara at Mtwara in Land Application No. 38/2021 dated 25th November, 2022) RIDHIWANI SEIFU MILANZI (Administrator of the Estates of the Late Maimuna Mussa Mang’oda) —...... ------......... -............. — APPELLANT VERSUS CHIVINJA A. MBWESO -....... ———.......... —— 1 st RESPONDENT BAKARI YASINI ------ ----------- — ————— 2^ RESPONDENT JUDGEMENT Date of last Order: 25.04.2023 Date of Judgment: 18.07.2023 Ebrahim, J. Hoving been unsuccessful at the District Land and Housing Tribunal for Mtwara at Mtwara, the appellant herein suing as an Administrator of the estates of the late Maimuna Mussa Mang’oda has instituted the instant appeal raising five grounds of appeal as follows: 1. The Honourable learned Chairman of the trial tribunal grossly erred in law and fact by not considering that the respondents and his relatives had no interest over the suit land, since the Page 1 of 16 appellant owned the suit land for a long time without any interpretation from any person claiming the same; 2, The Honourable Learned Chairman of the trial tribunal erred in Law and fact by failing to determine the issue of Locus Stand; that the 2nd respondent locked to sell the suit land to the 1st respondent; 3. The Honourable learned Chairman of the trial tribunal grossly erred in law and fact by not considering, analysing and weight the appellants witness evidence; 4. The Honourable learned Chairman of the trial tribunal erred in law and fact by holding in favour of the respondents, despite the fact that the respondent's failure to produce any strong evidence to prove ownership of the suit land; 5. The: Honourable Learned Chairman of the trial tribunal erred in law and fact for hearing and determining the same technically without justice. Page 2 of 16 The genesis of the dispute is the ownership of the disputed land measuring about 1 7z acre situated at Namalenga Ward in Masasi District Council within Mtwara Region. The appellant is Claiming that the disputed land is the property of their deceased mother whom he is the administrator of her estate and that both respondents particularly the 1st respondent invaded it. The appellant claims further that his mother was given the disputed land after she went back to her second marriage. PW2 testified that her sister (the deceased) was given the disputed land on bequeath after the death of their parents. PW1 said that they had a family meeting that the deceased properties should not be divided until all the children of the deceased have grown up. Their brother {2nd respondent) was the one taking care of the disputed land and the other land which is not in dispute. He further said that the 2nd respondent disposed the disputed land without having locus stand and the sale agreements tendered during the trial by the 1st respondent are not known to him. He called two witnesses to prove his assertion of facts. On the other hand, the 1st respondent vigorously disputed the claim by the appellant and contended that he purchased the suit land Page 3 of 16 way back on 07.03.2008 from the 2nd respondent one Bakari YasinL He called four witnesses to disapprove the appellant’s claim. Upon hearing and evaluating the evidence from both sides and considering the testimonies of the assessors, the trial tribunal declared the disputed land to be the property of the 1st respondent. Aggrieved, the Appellant lodged the instant appeal and the raised grounds of appeal can be condensed on the claim over evaluation and proof of evidence in giving right of ownership to the Respondent. In this appeal, both parties appeared in person, unrepresented. The appellant adopted his grounds of appeal and submitted that the: 2nd Respondent (Bakari Yasinij was not the administrator of the estates of the late Maimuna, hence he had no locus to dispose it of. He contended that his evidence was not given due weight and that the evidence adduced by the respondents was weak. He complained that the case was decided on technicality and not on merits. He prayed for the appeal to be allowed. Responding to the arguments by the appellant, the 1st respondent told the court that he legally purchased the disputed land from the Page 4 of 16 2nd respondent and he has a sale agreement. He said their witnesses who testified at the trial court gave strong evidence. The 2rd respondent told the court that 30 years have passed since his mother passed away and that appellants appointment was illegal. He said he disposed the disputed land legally as he was given the said land by his uncles and grandmothers who were the care takers of the land following the death of his mother. He contended further that he sold the disputed land in 2008 before the Ward Chairman, he asked where was the appellant since that time. He stated that the decision of the District Land and Housing Tribunal was correct in its decision. In rejoinder, the appellant contended that the matter was reported at the village office ten (10) years ago and that the case has four (4) years in court. The disputed land was not sold legally because the 2nd respondent had no locus and there was no evidence that the 2nd respondent was given the disputed land by their grandmother. I have carefully examined the evidence of parties in view of the grounds of appeal. The bone of contention in this appeal is pegged on the evaluation of evidence, the weight attached to it, the locus Page 5 of 16 standi of the 2nd respondent to sell the disputed land, and proof of ownership of the disputed land. Certainly, the contested issue in this case is the ownership of the disputed land as claimed by the Appellant. Sitting as the first appellate court, I am obliged without fail to make assessment of the evidence on the record and draw own inferences and findings of facts if need be. It was held in the case of Damson Ndaweka Vs. Ally Said! Mtera, Appeal No. 5 of 1999 CA, Arusha (unreported), that; “The High Court as first appellate court was bound to analyses the evidence of both sides with a view to satisfy itself that the finding of the trial court was justified on the evidence.” Upon examination of the impugned judgment of the District Land and Housing Tribunal, I observed that the trial chairman did not to analyse the evidence on record. In re-visiting the evidence on the proof of ownership of the disputed land, the Appellant (PW1) testified before the trial tribunal that her deceased’s mother was the owner of the disputed land, one farm and one demolished house. The 1st farm which is located at Chigawe, Namalenga Ward within Masasi District is about 2 to 3 Page 6 of 16 acres containing cashew trees. The 2Pd farm (disputed land) is also at Chigawe, Namalenga Ward within Masasi District Council measuring around 1 V2 acres. He testified also that on 30.07.2020 he was appointed by the Primary Court of Chiungutwa to be the administrator of the estates of his mother who passed away on 16,01.1993 (exhibit Pl) whereby his late mother was given the 2nd farm (the disputed land) when she went back to her second marriage. Furthermore, the appellant testified before the trial tribunal that his brother the 2^d respondent was given the disputed land and another farm to be a care taker only by the consent from the family meeting Until they all grow up but he was not (the 2nd respondent) the administrator of the estates of their late mother. Thus he had no locus to sell the disputed land. The Appellant called Esh a Musa (PW2) who testified that the two farms (including the disputed land) which are at Chigawe Masasi were owned by her late sister. She said the 2nd respondent was given the said land waiting for the division of the estate together with his young brother and sister. Page 7 of 16 The lsl respondent who testified os DW1 told the court that he purchased the disputed land from the 2nd respondent on 07.03.2008. He tendered a sale agreement which was admitted in the tribunal as exhibit DI. He testified also that he started trimming the trees and planting temporary and permanent crops. In 2019-2020 he started to take care of the cashew nut trees, in 2020 its when the appellant called him at the village office. He said since 07.03.2008 he was not asked by anyone and he was surprised by the appellant when he went in 2020 claiming for the land. Responding to cross examination questions, he said that the family of the appellant has never asked him anything, but at some time he said he did not give them any cooperation because he purchased the disputed land and the one who sold it to him was there. Responding to further cross examination questions he said that Hamisi Mnaida did not sign the sale agreement but he was among the seller in the said contract. He added that in the said agreement Bakari Yasini (the 2nd respondent) was witnessed by Hamisi Mnaida and Hamisi Mnaida was witnessed by Bakari Yasini (the 2nd respondent). He was witnessed by the Executive Officer. Page 8 of 16 The 2nd respondent who testified os DW2 told the tribunal that his parents were divorced but they decided not to divide the farm and gave if to him (the 2nd respondent). He testified also that the disputed land was not owned by his late mother and that it belonged to the elder sister of his late mother. He sold: the-dispuled land after agreeing with his uncles due to the reason that his wife was sick. The respondents called Rashidi Hassan Kalemwa (DW3), retired VEO who testified that the 1st respondent purchased the disputed land from the 2nd respondent. They went to his office and he gave them the sale agreement. He did not receive any complaint in year 2008 - 2009. Responding to cross examination questions:, he admitted witnessing the agreement but does not know where was the disputed land. He responded further that the sellers have sold two different farms which were at the same area. He agreed that sale agreement has to be sign by both sellers but he did not know why Hamisi Mnaida did not sign while he was there when he was preparing the said agreement. DW4 Hamisi Awasi Mnaide, testified as the person who was among the sellers in the sale agreement and that there is a dispute between Page 9 of 16 his relatives. He said, the 2nd respondent was given a piece of land by his grandmothers and he sold it to the 1st respondent. He testified to have also sold a piece of land to the 157 respondent. Responding to cross examination questions, he said when he was selling the piece of land his witness was his mother who told him to sell it and he was not worried that’s why he just Wrote his name in the sale agreement. First of all, there in no any evidence to prove that DW1 had an agreement with his uncles. It is mere words of DW1... DW3 (retired VEO) while responding to cross examination testified that he witnessed to have known the parties on the preparation of the said agreement but did not know the disputed land. However, he insisted that he does not agree that the disputed land belongs to the deceased Maimuna Musa because there was no any complaint since the same was sold. This is a major contradiction and absurd considering that he is purported to have witnessed the sale agreement as a Village Executive Officer hence must clearly know the land. DW4 while responding to cross examination questions said that when he was selling the piece of land his witness was his mother Page 10 of 16 who told him to sell it. I have scrutinized the records and specifically the 2nd respondent's sale agreement (exhibit DI) and noted that the same was neither signed by the 1st seller as afore mentioned nor his witness as the record of the tribunal reveals. The omission is doubtful as his signature was useful for evidential purposes. In other words, the sale agreement (exhibit DI) does not reveal whether the said lsf seller was one of the DW1 witness since his signature is missing. In short, the agreement was not witnessed, making the same none existent. I seek inspiration from the persuasive case of Janefh Ngowi Vs Patrick Mlenga, Land Appeal No. 253 Of 2021 HO- Land Division, where it was observed that: "In order to prevent future disputes, it is the practice that parties to the contract to have witnesses to assist to reinforce the validity and authenticity of the contract, Idyilically, a witness is an additional layer of security, whenever there is dispute between the parties, the witnesses are called to verify the authenticity of the contract." On the 2nd respondent's own evidence, he testified that the disputed land was owned by the elder sister of his late mother and he sold the disputed land after he had an agreement with his uncles and Page 11 of 16 grandmothers. The question here is if the disputed land was owned by his auntie i.e the elder sister of his late mother why did she go to the tribunal to testified to that effect? As for having been allowed by his uncles and grandmothers to sell the disputed land still there was no any documentary or any evidence to prove that particular fact. Again, the proof of ownership of the disputed land goes hand in hand with the salutary principle of the burden of proof that “he who alleges must prove" as per Section 110 of the Evidence Act, Cap 6 R.E 2022, As the case is a civil in nature, the standard of proof is on a balance of probabilities which simply means that the court will sustain such evidence which is more credible than the other on a particular fact to be proved. A statement by Lord Denning in Miller v. Minister of Pensions [1937] 2 AIL ER 340 suffice to emphasize on the point as reproduced hereunder: "If at the end of the case the evidence turns the scale definitely one way ortho other, the tribunal must decide accordingly, but if the evidence is so evenly balanced that the tribunal is unable to come to a determinate conclusion one way or the other, then the man must be given the benefit of the doubt This means that the case must be decided in favour of the man unless the Page 12 of 16 evidence against him reaches the same degree of cogency as is required to discharge a burden in civil case. That degree is well settled. If must carry a reasonable degree of probability, but not so high as required in a criminal case. If the evidence is such that the tribunal can say - We think if more probable than not, the burden is discharged, but, if the probabilities are equal, it is not... ", Tailoring the requirement of the burden of proof with the facts of this case, the respondent again did not avail to the court any document to prove that the disputed land is of the elder sister of his late mother as he claims. It is strange for a person who claims that the disputed land belongs to someone else yet that person did not go to the tribunal to testify on the ownership and no any documentary proof of any kind to prove ownership of the said land. Regarding the locus standi of the 2nd respondent to sell the disputed land, the appellant argued that 2nd respondent did not have locus stand to sell the disputed land because he was not legally appointed as the administrator of the estate of their late mother. In reply the 2nd respondent told the court that he sold the disputed land legally. Page 13 of 16 locus standi is the right or legal capacity to bring an action or to appear in a court. In tujuna Shubi Ballonzi v. Registered Trustees of Chama Cha Mapinduzi (1996) TLR 203, Somalia, J (as he then was) had the following to say on locus standi: "Locus standi is governed by common law according to which a person bringing a matter to court should be able to show that his right or interest has been breached or interfered with. The High Court has the power to modify the applied comrhon law so as to make it suit local conditions." I further subscribe to the position of the Court of Appeal in Peter Mpalanzi vs Christina Mbaruku (Civil Appeal No. 153 of 2019) [2021 ] TZCA 510 (23 September 2021) it was observed that; "Locus standi is a rule of equity that a person cannot maintain a suit or action unless he has an interest in the subject matter. Unless a person stands in a sufficient close relation to the subject matter so as to give a right which requires protection or infringement of which he brings the action, he cannot sue on it- see Godbless Lerna v. A/lussa Hamis Mkanga and 2 Others, Civil Appeal No. 47 of 2012 (unreported). Further, locus standi is a point of law rooted info jurisdiction. It is for that reason that it must be Page 14 of 16 considered by a court at the earliest opportunity or once it is raised." .n the instant case, the Chairman of the tribunal was incorrect when answering to the first issue at page 7 of the impugned judgment by declaring the 1st respondent to be a lawful owner on the fact that the 2nd respondent sold to him the disputed land after being allowed by his grandmothers. The question is how did he prove that the 2nd respondent had a locus standi to sell the disputed land while he did not have any legal document to that effect and it is a fact that it is not his land or that he is an administrator of the deceased’s estate. For the reasons I have given above, I find that the 2nd respondent had no locus standi to sell the disputed land and the District Tribunal did therefore err in entertaining the claim of the 1Ef respondent that he purchased the said land from the 2rd Respondent. In essence, the weight of the testimonies of PW1 and PW2 are relevant and material to the fact in issue. There is no contradiction pointed out on their evidence and the application. The respondent has not given the trial tribunal any cogent reason to discredit their testimonies. There is nowhere it has been shown that their testimonies were contradictory. Page 15 of 16 From the above observation, I find that the trial tribunal was not correct to consider and give weight to the testimonies of the respondents. That being said I find this appeal to be meritorious. Accordingly, I allow it as the appellant’s evidence was heavier than that of the respondents. The respondents failed to discharge their burden of proof in proving ownership. The appellant to have his costs. Ordered Accordingly. R.A Ebrahim Judge. 18.07.2023 Mtwara. Page 16 of 16